DECLARATION OF TRUST AND BY-LAWS OF THE VILLAGE AT SALISBURY SQUARE CONDOMINIUM

Transcription

1 DECLARATION OF TRUST AND BY-LAWS OF THE VILLAGE AT SALISBURY SQUARE CONDOMINIUM This Declaration of Trust and By-Laws of The Village at Salisbury Square Condominium is made at Salisbury, Essex County, Massachusetts by 12 Beach Road, LLC, a Massachusetts limited liability company having an address at 6 Lyberty Way, Suite 201, Westford, Massachusetts 01886, hereinafter called the Trustee, which term includes his successors in trust. The term Trustee or Trustees also means the Trustee or Trustees for the time being hereunder, whenever the context so permits. 1. NAME OF TRUST. The Trust created hereby shall be known as The Village at Salisbury Square Condominium Trust and all activities carried on by the Trustees hereunder shall, insofar as legal, practical and convenient, be conducted under said name and style. 2. PURPOSES. (a) All of the rights and powers in, to and with respect to the Common Areas and Facilities of The Village at Salisbury Square Condominium established by the Master Deed of even date and recorded herewith (hereinafter called the Condominium ), which are by virtue of the provisions of Massachusetts General Laws, Chapter 183A, (hereinafter called Chapter 183A ) conferred upon or exercisable by the organization of Unit Owners of the Condominium and all property, real and personal, tangible and intangible, conveyed to the Trustees hereunder shall vest in the Trustees as joint tenants, with right of survivorship, as Trustees of this Trust, BUT IN TRUST NEVERTHELESS, to exercise, manage, administer and dispose of the same exclusive of the Common Areas and Facilities and to receive the income thereof for the benefit of the Owners of record from time to time of the Units of the Condominium (hereinafter called the Unit Owners ), according to the schedule of beneficial interest referred to herein, and in accordance with the provisions of said Chapter 183A. This Trust is the organization of the Unit Owners established pursuant to the provisions of said Chapter 183A for the purposes therein set forth. (b) It is hereby expressly declared that a Trust, and not a partnership, has been hereby created and that the Unit Owners are beneficiaries and not partners or associates or any other relation whatever among themselves with respect to the Trust property, and hold no relation to the Trustees other than - 1 -

2 as such beneficiaries, with only such rights as are conferred upon them as such beneficiaries hereunder and under and pursuant to the provisions of said Chapter 183A. 3. TRUSTEES. (a) Appointment of Trustees (i) Initial Board The Initial Board shall consist of the Trustee named in the first paragraph of this Declaration of Trust, to wit: 12 Beach Road, LLC, hereinafter called the Initial Board. The term of the Initial Board shall end upon the latest to occur of the following events: (a) four (4) months after 75% of the units in all phases have been conveyed to unit purchasers; or (b) seven (7) years following the conveyance of the first unit. Notwithstanding any other term or provision of this Trust to the contrary: (a) the Unit Owners shall have no power or right to remove the Initial Board, namely, 12 Beach Road, LLC, nor to appoint any additional or successor trustees, until the term of said Initial Board shall have expired as set forth in the immediately preceding sentence; and (b) during the term of the Initial Board, any vacancy in the office of a Trustee, however caused, shall be filled only by the designation of the Declarant of the Master Deed. For the purposes of this Section, Units shall include all those to be constructed on any additional land or as part of future Phases or Sub-Phases. (ii) Subsequent Boards of Trustees After the term of the Initial Board, there shall at all times be a Board of Trustees hereunder consisting of not less than three (3) nor more than five (5) natural persons, but in any event an odd number, such number to be determined from time to time by vote of Owners holding not less than twenty-five percent (25%) of the beneficial interest hereunder, which voting power shall be exercised at any annual or special meeting of the Unit Owners. The term of office of Trustees succeeding the Initial Board shall, except as hereinafter provided, be three (3) years, and such terms shall be staggered so that insofar as possible, the terms of at least one-third of the Trustees shall expire each year, provided, that in order to establish and maintain such staggering of terms, that the terms of the persons first appointed and/or elected as Trustees after the Initial Board, shall be one (1) year, two (2) years, and three (3) years, respectively, determined by lot, and thereafter upon any increase or decrease in the number of Trustees, the terms of any then newly appointed Trustee or Trustees shall be one (1) year, two (2) years, or three (3) years, determined insofar as necessary by lot, so as to maintain such staggering of terms insofar as possible. The Trustees need not be Owners. After the expiration of the term of the Initial Board, the presence in person or by proxy of Unit Owners holding at least twenty-five percent (25%) of the beneficial interest under the Trust shall constitute a quorum of all meetings of Unit Owners for purposes of election of Trustees. Any election at a meeting which this quorum has been established shall require a vote of a plurality of the beneficial interest of Unit Owners in attendance in person or by - 2 -

3 proxy. Each person elected to serve as Trustee who wishes to so serve shall promptly file with the Board of Trustees or their designee of the Trust his written acceptance of election, and upon receipt of such acceptance, the Board of Trustees or their designee shall sign and record with the Essex South District Registry of Deeds a Certificate of Election setting forth the names of the new Trustees and reciting that they have been duly elected by the requisite vote of the Owners and have filed their written acceptances of election with the Board of Trustees or their designee, and upon the recording of such Certificate of Election, the election of the Trustees named therein shall become effective and each such person named therein as a Trustee shall then be and become such Trustee and shall be vested with the title to the Trust property, jointly with the remaining or surviving Trustee or Trustees without the necessity of any act of transfer or conveyance. (b) Vacancies (i) After the expiration term of the Initial Board, if and whenever the number of such Trustees shall become less than the number determined as set forth above, a vacancy or vacancies in said office shall be deemed to exist. Each such vacancy shall be filled by an instrument in writing set forth (a) the appointment of a natural person to act as such Trustee signed (i) by two (2) Unit Owners who shall certify under oath that Unit Owners entitled to not less than twenty-five percent (25%) of the beneficial interest have voted to make such appointment; (ii) the election of a natural person to act as Trustee as set forth hereunder; or (iii) if such Unit Owners have not within thirty (30) days after the occurrence of such vacancy made such appointment or election as set forth above by a majority of the then remaining Trustees or by the sole remaining Trustee if only one, and (b) the acceptance of such appointment, signed and acknowledged by the person so appointed. Such appointment shall become effective upon the recording in the Essex South District Registry of Deeds of such designation, together with such acceptance, and such persons shall then be and becomes such Trustee and shall be vested with the title to the Trust property jointly with the remaining Trustee or Trustees without the necessity of any act of transfer or conveyance. If for any reason any vacancy in the office of Trustee shall continue for more than sixty (60) days and shall at the end of that time remain unfilled, a Trustee or Trustees to fill such vacancy or vacancies may be appointed by any Court of competent jurisdiction upon the application of any Unit Owner or Trustee and notice to all Unit Owners and Trustees and to such other parties in interest, if any, to whom the Court may direct that notice be given. The foregoing provisions of this Section to the contrary notwithstanding, despite any vacancy in the office of Trustees, however caused and for whatever duration, the remaining Trustees, subject to the provisions of the immediately following Section, shall continue to exercise and discharge all of the powers, discretions and duties hereby conferred or imposed upon the Trustees. (c) Majority Vote - 3 -

4 (i) In all matters relating to the administration of the Trust hereunder and the exercise of the powers hereby conferred, the Trustees shall act by majority vote, provided that subsequent to the expiration of the term of the Initial Board (but not prior thereto) in no case shall a majority consist of less than two (2). The Trustees may so act without a meeting by instrument signed by all Trustees. (ii) During the term of the Initial Board, a majority vote shall consist of the vote of the sole member of the Initial Board acting alone. Such sole member may so act without a meeting by instrument signed by it alone. (d) Resignation of Trustees - Removal (i) Any Trustee may resign at any time by instrument in writing, signed and acknowledged in proper form for recording and such resignation shall take effect upon the recording of such document with the Essex South District Registry of Deeds. (ii) After reasonable notice and opportunity to be heard before a meeting of the Unit Owners, a Trustee (except a member of the Initial Board) may be removed from office with cause or without cause, by an instrument in writing signed by vote of Unit Owners entitled to not less than fifty-one percent (51%) of the beneficial interest hereunder, such instrument to take effect upon the recording thereof with said Essex South District Registry of Deeds. (e) Bonds The Trustees shall obtain and maintain fidelity bonds as set forth in the By-Laws. (f) Good Faith No Trustee hereinbefore named, or appointed or designated as hereinbefore provided, shall under any circumstances or in any event be held liable or accountable out of his personal assets or estate or be deprived of compensation by reason of any action taken, suffered or omitted in good faith, or be so liable, accountable or deprived for more money or other property than he actually receives, or for allowing one or more of the other Trustees to have possession of the Trust books or property, or be so liable, accountable or deprived by reason of honest errors of judgment or mistakes of fact or law or by reason of the existence of any personal interest or gain or by reason of anything except his own personal and willful malfeasance, bad faith or fraud. (g) Conflict of Interest No Trustee shall be disqualified by his office from contracting or dealing with the Trustees or with one or more Unit Owners (whether directly or indirectly because of his interest individually or the Trustees interest or any Unit Owner s interest in any corporation, firm, trust or other organization connected with such contracting or dealing or because of any - 4 -

5 other reason), as vendor, purchaser or otherwise, nor shall any such dealing, contract or arrangement entered into in respect of this Trustee in which any Trustee shall be in any way interested, be avoided, nor shall any Trustee so dealing or contracting or being so interested, be liable to account for any profit realized by any such dealing, contract or arrangement by reason of such Trustee s holding office or of the fiduciary relationship hereby established, provided the Trustee shall act in good faith and shall disclose to the other Trustees the nature of his interest before the dealing, contract or arrangement is entered into. It is understood and permissible for the Initial Board hereunder and any other Trustees designated by the Initial Board or who are employed by or affiliated or associated with the Declarant, to contract with the Declarant and any corporation, firm, trust or other organization controlled by or affiliated or associated with the Declarant without fear of being charged with self-dealing. (h) Compensation The Trustees shall receive no compensation for their services as such Trustees, but with the prior written approval in each instance of the other Trustees, and upon presentation of proper vouchers, each Trustee may be reimbursed for actual out-of-pocket expenses paid or incurred by him pursuant to his duties as such Trustee, and such reimbursement shall be a Common Expense of the Condominium. With the prior written approval in each instance of the other Trustees, each Trustee may receive reasonable compensation for any extraordinary or unusual services rendered by him in connection with this Trust, and such compensation shall be a Common Expense of the Condominium. With the prior written approval in each instance of the other Trustees, any Trustee may be engaged to render services to this Trust, legal, accounting, or otherwise, at such compensation as shall be fixed by the Trustees and any fees or other compensation shall be a Common Expense of the Condominium. Notwithstanding anything to the contrary in this subsection, no compensation or fees shall be paid to the Initial Board pursuant to the provisions of this Section. A Trustee shall abstain from voting upon any question regarding reimbursement, compensation or fees proposed to be paid to him pursuant to the provisions of this subsection, or upon any question regarding the engagement of himself, or any firm, association, corporation or partnership of which he is a member, to render services, legal, accounting or otherwise to this Trust. (i) Indemnity The Trustees and each of them shall be entitled to indemnity both out of the Trust property, and by the Unit Owners severally in proportion to their ownership in the Common Areas and - 5 -

6 Facilities against any liability incurred by them or any of them in the execution hereof including, without limitation, liabilities in contract and in tort and liabilities for damages, penalties and fines. Each Unit Owner shall be personally liable for all sums lawfully assessed for his share of the Common Expenses of the Condominium and for his proportionate share of any claims involving the Trust property in excess thereof. (j) No Personal Liability No Trustee shall under any circumstances or in any event be held liable or accountable out of his personal assets or be deprived of compensation, if any, by reason of any action taken, suffered or omitted in good faith, or for allowing one or more of the other Trustees or Managing Agent to have possession of the Association s books or property, or be so liable, accountable or deprived by reason of honest errors or judgment or mistakes of fact or law or by reason of anything except his own personal and willful malfeasance and defaults. (k) Limited Declarant Liability Notwithstanding anything to the contrary herein, and notwithstanding any custom or usage to the contrary, it is expressly understood that only the interest in the Condominium of the Declarant shall be bound by the provisions of this Trust and the Master Deed. No member, manager, officer, director or employee of the Declarant shall have any personal liability hereunder. 4. BENEFICIARIES AND THEIR BENEFICIAL INTEREST. (a) The beneficiaries hereof shall be the Unit Owners of the Condominium, for the time being. The beneficial interest in the Trust hereunder shall be divided among the Unit Owners in the percentage of undivided beneficial interest appertaining to the Units of the Condominium, all as set forth on Exhibit C of the Master Deed, which is hereby incorporated herein by this reference and made a part hereof, with the same force and effect as though fully set forth in the body hereof. (b) The beneficial interest of each Unit of the Condominium shall be held and exercised as a Unit and shall not be divided among several Owners of any such Unit. To that end, whenever any of said Units is owned of record by more than one person, the several Owners of such Unit shall: (i) determine and designate which one of such Owners shall be authorized and entitled to cast votes, execute instruments, and otherwise exercise the rights appertaining to such Unit hereunder; and (ii) notify the Trustees of such designation by a notice in writing signed by all of the record Owners of such Unit. Any such designation shall take effect upon receipt by the Trustees of such notice, and may be changed at any time and from time to time by notice as aforesaid. In the absence of any such notice of designation, the Trustees may designate any one of such Owners for such purposes. 5. BY-LAWS. The By-Laws of this Trust are attached hereto as Exhibit A which is hereby incorporated herein by - 6 -

7 this reference and made a part hereof with the same force and effect as though fully set forth in the body hereof. 6. RIGHTS AND OBLIGATIONS OF THIRD PARTIES DEALING WITH THE TRUST. (a) Any instrument signed and acknowledged in proper form for recording, by a majority of the Trustees as they then appear of record in the Essex South District Registry of Deeds may be relied on as conclusively establishing that such instrument was the free act of this Trust and shall be binding upon this Trust when so recorded. (b) No purchaser, mortgagee, lender, or other person dealing with a majority of the Trustees, as they then appear of record in the Essex South District Registry of Deeds shall be bound to ascertain or inquire further as to the persons who are then the Trustees hereunder or be affected with any notice, implied or actual, relative thereto, other than by a certificate thereof, so recorded, and such recorded certificate shall be conclusive evidence of the personnel of said Trustees and of any changes therein. The receipts of a majority of the Trustees, for money paid or things delivered to them shall be effectual discharges therefrom to the persons paying or delivering the same, and no person from whom a majority of the Trustees shall receive any money, property or other credit, shall be required to see to the application thereof. No purchaser, mortgagee, lender or other person dealing with a majority of the Trustees, or with any real or personal property which then is or formerly was Trust property shall be bound to ascertain or inquire as to the existence or occurrence of any event or purpose in or for which a sale, mortgage, pledge or charge is herein authorized or directed, or otherwise as to the purpose of regularity of any of the acts of the Trustee(s) purporting to be done in pursuance of any of the provisions or powers herein contained, or as to the regularity of the resignation or appointment of any Trustee. Any instrument of appointment of a new Trustee or resignation or discharge of a Trustee purporting to be executed by the Trustees, Unit Owners or other persons herein required to execute the same, shall be conclusive evidence in favor of any such purchaser or other person dealing with the Trustees of the matters therein recited relating to such discharge, resignation or appointment or the occasion thereof. (c) Notwithstanding anything to the contrary herein, and notwithstanding any custom or usage to the contrary, no recourse shall at any time be had under or upon any note, bond, contract, order, debt, claim, instrument, certificate, undertaking, obligation, covenant, or agreement, whether oral or written, made, issued or executed by the Trustees or by any agent or employee of the Trustees, or by reason of anything done or omitted to be done by or on behalf of them or any of them, against the Trustees individually, or against any such agent or employee, or against any beneficiary, either directly or indirectly, by legal or equitable proceedings, or by virtue of any suit or otherwise, and all persons extending credit to, contracting with, or having any claim against the Trustees, shall look only to the Trust property for payment under such note, bond, contract, order, debt, claim, instrument, certificate, undertaking, obligation, covenant, or agreement, or for the payment of any debt, damage, judgment or decree, or of any money that may otherwise become due or payable to them from the Trustees, so that neither the Trustees nor the beneficiaries, present or future, shall ever be personally or individually liable therefore; provided, however, that nothing herein contained shall be deemed to limit or impair the liability of the Unit Owners under the provisions of said Chapter - 7 -

8 183A. (d) Every note, bond, contract, order, instrument, certificate, undertaking, obligation, covenant or agreement, whether oral or written, made, issued or executed by the Trustees, or by any agent or employee of the Trustees, shall be deemed to have been entered into subject to the terms, conditions, provisions and restrictions hereof, whether or not express reference shall be made to this instrument. (e) This Declaration of Trust and amendments hereto and any Certificate herein required or which it may be deemed desirable to record, shall be recorded with the Essex South District Registry of Deeds and such record when executed according to the requirements of this Declaration of Trust shall be deemed conclusive evidence of the contents and effectiveness thereof according to the tenor thereof; and all persons dealing in any manner whatsoever with the Trustees, the Trust property, or any beneficiary hereunder, shall be held to have notice of any alteration or amendment of this Declaration of Trust, or change of Trustee or Trustees, when the same shall be so recorded. Any certificate signed by a majority of the Trustees at the time as they then appear of record in the Essex South District Registry of Deeds setting forth as facts any matters affecting the Trust, including statements as to who are the Trustees, as to what action has been taken by the Trustees or beneficiaries, and as to what action has been taken by the Trustees or beneficiaries, and as to matters determining the authority of the Trustees to do any act, when duly acknowledged and recorded with said Essex South District Registry of Deeds, shall be conclusive evidence as to the existence of such alleged facts in favor of all third persons, including the Trustees acting in reliance thereon. Any certificate executed by a majority of the Trustees as they then appear of record in the Essex South District Registry of Deeds setting forth the existence of any facts, the existence of which is necessary to authorize the execution of any instrument or the taking of any action by such Trustees, shall, when duly acknowledged and recorded with said Essex South District Registry of Deeds, as to all persons acting in good faith in reliance thereon, be conclusive evidence of the truth of the statement made in such certificate and of the existence of the facts therein set forth. 7. AMENDMENTS; TERMINATION. (a) Notwithstanding anything to the contrary herein, so long as the Declarant owns any Unit in the Condominium, the Declarant shall have the right, at any time and from time to time, to amend this Declaration of Trust (including, but not limited to, the By-Laws hereto and the Rules and Regulations hereto) without the consent of any Unit Owners or any of the Trustees of this Trust or any mortgagees, to meet the requirements of any governmental or quasi-governmental body or agency, or the requirements of any insurance company or insurance underwriting office or organization, or the requirements of Federal National Mortgage Association, Federal Home Loan Mortgage Corporation, the secondary mortgage market, or any lender, or to cure any ambiguity, inconsistence or formal defect or omission. (b) Subject, however, to the provisions of the By-Laws hereto: (i) A majority of the Trustees, with the consent in writing of seventy-five percent (75%) in interest of Unit Owners, may at any time and from time to time amend, alter, add to, or - 8 -

9 change this Declaration of Trust in any manner or to any extent, the Trustees first, however, being duly indemnified to their reasonable satisfaction against outstanding obligations and liabilities; provided, however, that no such amendment, alteration, addition or change shall be made: (i) without the prior written consent of the Declarant obtained in each instance, for so long as the Declarant remains the Owner of any Unit in the Condominium; or (ii) according to the purport of which, except as set forth in the Master Deed, the percentage of the beneficial interest hereunder of any Unit Owner would be altered, or in any manner or to any extent whatsoever, modified or affected so as to be different than the percentage of the individual interest of such Unit Owner in the Common Areas and Facilities as set forth in the Master Deed other than by (pursuant to General Law Chapter 183A, Section 5) consent of all of the Unit Owners whose percentage of the undivided interest is affected; or (iii) which would render this Trust contrary to or inconsistent with any requirements or provisions of said Chapter 183A. Any amendment, alteration, addition or change pursuant to the foregoing provisions of this Section shall become effective upon the recording with the Essex South District Registry of Deeds of an instrument of amendment, alteration, addition or change, as the case may be, signed, sealed and acknowledged in proper form for recording, setting forth in full the amendment, alteration, addition or change. Such instrument, so executed and recorded, shall be conclusive evidence of the existence of all facts and of compliance with all prerequisites to the validity of such amendment, alteration, addition or change, whether stated in such instrument or not, upon all questions as to title or affecting the rights of third persons and for all other purposes. (ii) The Trust hereby created shall terminate only upon the removal of the Condominium from the provisions of Chapter 183A in accordance with the procedure therefore set forth in said Chapter 183A. (iii) Upon the termination of this Trust, the Trustees may, subject to and in accordance with the provisions of said Chapter 183A, sell and convert into money the whole of the Trust property, or any part or parts thereof, and, after paying or retiring all known liabilities and obligations of the Trustees and providing for indemnity against any other outstanding liabilities and obligations, shall divide the proceeds thereof among, and distribute in kind, at valuations made by them which shall be conclusive if made in good faith, all other property then held by them in trust hereunder to the Unit Owners according to their respective percentages of beneficial interest hereunder. In making any sale under the provisions of this subjection, the Trustees shall have the power to sell or vary any contract of sale and resell without being answerable for loss, and, for said purposes, to do all things, including the execution and delivery of instruments, as may by their performance thereof be shown to be in their judgment necessary or desirable in connection therewith. The powers of sale and all other powers herein given to the Trustees shall continue as to all property at any time remaining in their hands or ownership, even though all times herein fixed for distribution of Trust property may have passed; (iv) Reference is made to the Approvals, as that term is defined in the Master Deed. No instrument of amendment which attempts to alter any requirements set forth in the Approvals - 9 -

10 shall be of any force or effect unless approved by the appropriate Town board, agency or commission according to law. The provisions of Section 31 of the By-Laws hereto shall at all times take precedence over the provisions of this Section. 8. CONSTRUCTION: INTERPRETATION. (a) In the construction hereof, whether or not so expressed, words used in the singular or in the plural, respectively, shall include both the plural and singular; words denoting males include females; and words denoting persons include individuals, firms, associations, companies (joint stock or otherwise), partnerships, entities or quasi-entities, trusts and corporations; unless a contrary intention is to be inferred from or is required by the subject matter or context. The marginal and sectional captions and headings are inserted only for convenience of reference and are not to be taken to be any part hereof or to control or affect the meaning, construction, interpretation, or affect hereof. (b) All of the trusts, powers and provisions herein contained shall take effect and be construed according to the laws of the Commonwealth of Massachusetts in general, and with respect to Massachusetts General Laws, Chapter 183A, in particular. (c) The invalidity of any provision or part of such provision hereof shall not impair or affect in any manner the remainder hereof, or the remainder of such provision or such part of such provision. (d) No restriction, condition, obligation or provision contained herein (including, but not limited to, the By-Laws hereof attached as Exhibit A and incorporated herein by reference) shall be deemed to have been waived by reason of any failure to enforce the same, irrespective of the number or frequency of violations or breaches thereof which may occur. (e) In the event of any conflict between the provisions hereof (including, but not limited to, the By-Laws hereof attached hereto as Exhibit A and incorporated herein by reference) and the provisions of Massachusetts General Laws, Chapter 183A, and the Master Deed, then the provisions of said Chapter 183A, or of the Master Deed, as the case may be, shall control. Words defined in said Chapter 183A shall have the same meaning herein as defined in said statute, unless the context clearly indicates otherwise. EXECUTED as a sealed instrument this day of, Beach Road, LLC, Trustee as aforesaid By:, Manager

11 COMMONWEALTH OF MASSACHUSETTS, ss:, 2014 On this day of, 2014, before me, the undersigned notary public, personally appeared, proved to me through satisfactory evidence of identification, which was drivers license, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose as Manager 12 Beach Road, LLC, the duly authorized Trustee of The Village at Salisbury Square Condominium Trust. Official Signature and Seal of Notary My Commission Expires:

12 EXHIBIT A Incorporated into and made a part of the Declaration of Trust of The Village at Salisbury Square Condominium Trust. BY-LAWS OF THE VILLAGE AT SALISBURY SQUARE CONDOMINIUM TRUST The provisions of this Exhibit A to The Village at Salisbury Square Condominium Trust shall constitute the By-Laws of The Village at Salisbury Square Condominium Trust, the organization of Unit Owners established by said Trust. 1. Powers and Duties of the Trustees. The Board of Trustees shall have all power necessary for the administration of the affairs of the Condominium as set forth in Massachusetts General Laws, Chapter 183A, and they may do any and all acts necessary or desirable for the administration of the affairs of the Condominium except only for such acts as may not, under law, or under the provisions of the Master Deed, or this Trust, be delegated to the Trustees by the Unit Owners. Such powers and duties of the Trustees shall include, but shall not be limited to, the following: a. Operation, care, upkeep and maintenance of the Common Areas and Facilities; b. Determination of the Common Expenses required for the affairs of the Condominium including, but not limited to, the operation and maintenance of the Common Areas and Facilities; c. Collection of the Common Expenses from the Unit Owners; d. Employment and dismissal of the personnel necessary or advisable for the maintenance and operation of the Common Areas and Facilities; e. Subject to the provisions of these By-Laws, adoption, amendment and administration (including waiver) of Rules and Regulations covering the details of the operation and use of the Common Areas and Facilities; f. Opening of bank accounts on behalf of the Condominium and, subject to the provisions hereof, designating the signatories required therefore; g. Leasing, managing and otherwise dealing with such facilities as may be provided for in the Master Deed as being Common Areas and Facilities; h. Owning, conveying, and encumbering, and otherwise dealing with Units conveyed to the Trust or purchased by it as a result of enforcement of the lien for Common Expenses, or otherwise; i. Obtaining of insurance for the Condominium, including the Units, pursuant to the provisions hereof; j. Making of repairs, additions and improvements to, or alterations or restoration of, the Condominium, in accordance with the other provisions of this Trust; k. Subject to the provisions of these By-Laws purchasing a Unit; l. Purchasing of Units at foreclosure or other sales;

13 m. Organizing and maintaining corporations, trusts or other entities to act as nominee of the Condominium in acquiring title to Units on behalf of all Unit Owners under the provisions hereof; n. Conducting litigation as to any course of action involving the Common Areas and Facilities or arising out of the enforcement of the By-Laws, Rules and Regulations, and Master Deed and this Trust. Notwithstanding any provision of the Master Deed or the Declaration of Trust of the Condominium Trust, or of these By-Laws or Rules and Regulations to the contrary, neither the Trustees acting in their capacity as such Trustees or acting as representatives of the Unit Owners, nor any class of Unit Owners shall bring any litigation whatsoever unless a copy of the proposed Complaint in such litigation has been delivered to all of the Unit Owners, and not less than eighty percent (80%) of all Units Owners consent in writing to the bringing of such litigation within thirty (30) days after a copy of such Complaint has been delivered to the Unit Owners and specifying as a part of the written consent a specific monetary limitation to be paid as legal fees and costs and expenses to be incurred in connection therewith, which amount shall be separately assessed as a special assessment effective forthwith at the time of said affirmative consent. Notwithstanding any provisions of the Master Deed, or of the Declaration of Trust of the Condominium Trust (including, but not limited to, the provisions of Section 7 of the Declaration of Trust of the Condominium Trust), or these By-Laws or the Rules and Regulations, the provisions of this Paragraph shall not be amended except by vote of at least eighty percent (80%) of the Unit Owners. The provisions of this Paragraph shall not apply to litigation by the Condominium Trust against Unit Owners with respect to the recovery of overdue Common Expenses or Special Assessments, or to foreclose the lien provided by Chapter 183A, Section 6, and 254, Sections 5 and 5A, or to enforce any of the provisions of the Master Deed, or the Declaration of Trust of the Condominium Trust, or these By-Laws or Rules and Regulations thereto, or the Unit deed, against Unit Owners; o. Granting permits, licenses and easements over the Common Areas and Facilities for utilities and other purposes reasonably necessary or useful for the proper maintenance or operation of the Condominium project; p. Enforcing obligations of the Unit Owners, allocating income and expenses, and to do anything and everything else necessary and proper for the sound management of the Condominium; q. Borrowing money for any proper Condominium purpose, and granting to the lender a security interest and pledge of the Trust s receivables including, but not limited to, amounts receivable in the future for Common Expense and Special Assessments of any description; and, r. Investing Condominium assets in accordance with sound business practices. 2. Common Expenses and Profits

14 A. Each Unit Owner shall be liable for Common Expenses and shall be entitled to common profits of the Condominium in the same proportion as his beneficial interest in this Trust bears to the aggregate beneficial interest of all the other Unit Owners. The Trustees may at any time or times distribute common profits among the Unit Owners in such proportions. The Trustees shall at all times establish and maintain an adequate reserve fund for the periodic maintenance, repairs and replacement of improvements to the Common Areas and Facilities and those Limited Common Areas which the Trust may be obligated to maintain, and such reserve fund shall be funded by regular monthly assessments from regular assessments for Common Expenses, and such fund shall not be deemed to be common profits available for distribution. B. In addition to the foregoing, (and not in substitution thereof) to ensure that this Trust will have the funds to meet unforeseen expenditures or to purchase any additional equipment or services, there shall be a working capital fund at least equal to two (2) months estimated common charges for each Unit. Any amounts paid into this fund shall not be considered as advance payments of regular assessments. Each Unit s share of the working capital fund shall be collected at the time the sale of the Unit is closed or at the time control of this Trust is transferred to the Trustees elected by Unit Owners other than the Declarant, as set forth in this Trust, whichever occurs earlier. The Declarant may reimburse itself for these payments from the funds collected at closing when the unsold Units are sold. When control of this Trust is transferred as set forth in the immediately preceding sentence, the working capital fund shall be transferred to this Trust for deposit to the General fund for any lawful purpose, including offsetting deficits, unanticipated expenditures, or transfer to resources, all subject to board vote. During the term of the Initial Board (or while a majority of the Trustees are the Declarant, or nominees or designees of the Declarant) the working capital fund which is the subject of this Subsection cannot be used to defray the expenses, reserve contributions, or construction costs which are the responsibility of the Declarant in its role as Developer of the Condominium or to make up budget deficits. C. In addition to the foregoing (and not in substitution thereof), the Trustees shall, to such extent as they deem advisable, set aside common funds of the Condominium as additional reserves and may use the funds to set aside for reduction of indebtedness or other lawful capital purposes, and shall set aside common funds for the purpose set forth in Section 21 hereof, and, subject to the provisions of these By-Laws, for repair, rebuilding or restoration of the Condominium, or for improvements thereto, and for replacement of the Common Areas and Facilities, and other proper contingencies, and the funds so set aside shall not be deemed to be common profits available for distribution. D. At least thirty (30) days prior to the commencement of each fiscal year of this Trust, the Trustees shall estimate the Common Expenses expected to be incurred during such fiscal year, together with reasonable provision for contingencies and reserves, and for the reserve funds mentioned above, and after taking into account any undistributed common profits from prior years, shall determine the assessment for Common Expenses to be made for such fiscal year. The Trustees shall promptly furnish copies of each budget on which such assessment is based to all Unit Owners, and, if requested, to their mortgagees. The Trustees shall promptly render statements to the Units Owners for the respective shares of such assessment, and each Unit Owner thereafter shall pay one

15 twelfth of his share of the estimated Common Expenses monthly in advance on the first day of each month. In the event that the Trustees fail or neglect to promulgate such budget, then the budget for the immediately preceding year shall be deemed to be in effect until the Trustees promulgate a current budget. The Trustees shall not be obligated to render monthly statements. In the event that at any time and from time to time the Trustees shall determine during any fiscal year that the assessment so made is less than the Common Expenses actually incurred, or to be incurred including, but not limited to, provisions for proper reserve funds, the Trustees shall make a supplemental assessment or assessments and render statements therefore in the manner aforesaid, and such statements shall be payable and take effect as set forth in such statements. The Trustees may, in their discretion, provide for payments of such supplemental assessment statements in monthly or other installments. The Trustees shall have the authority and the duty to levy and enforce the collection of general and special assessments for Common Expenses. E. Common Expenses and Supplemental Assessments not actually received by the Trustees within fifteen (15) days next after the due date thereof shall be subject to a late charge that the board may determine for the particular circumstance. F. The amount of each such statement, for regular or supplemental assessments, together with late fees thereon if not paid when due as set forth above, together with all expenses, including attorneys fees, incurred by the Trustees in any proceeding brought to collect such unpaid Common Expenses and assessments, shall constitute a lien on the Unit of the Unit Owner assessed pursuant to the provisions of Section 6 of said Chapter 183A and Sections 5 and 5A of Chapter 254, and may be collected by the Trustees pursuant to said statutes as the same may be amended. The Trustees shall take prompt action to collect any Common Expenses and assessments due from any Unit Owner which remain unpaid for more than thirty (30) days from the due date thereof including, but not limited to, action under the provisions of the Massachusetts General Laws Chapters 183A and 254 as the same may be amended. In the event that the Trustees bring an action to foreclose a lien on any Unit pursuant to said statute, the Unit Owner shall pay a reasonable sum for use and occupancy of his Unit from the date of foreclosure until the Unit Owner vacates the Unit (the plaintiff in such foreclosure action shall be entitled to the appointment of a receiver to collect the same) but nothing in this sentence shall be deemed to grant any Unit Owner the right to remain in possession of his Unit after such foreclosure. The Trustees, acting on behalf of all Unit Owners, shall have power to purchase such Unit at the foreclosure sale and to acquire, hold, mortgage (but not vote the vote appurtenant to), convey or otherwise deal with the same. A suit to recover a money judgment for unpaid Common Expenses shall be maintainable without foreclosing or waiving the lien securing the same. In the event of any suit or foreclosure or waiving the lien securing the same. In the event of any suit or foreclosure by the Trustees, the Trustees shall be entitled to late charges as set forth in this Section, and all costs of collection, suit and foreclosure, including attorneys fees. In addition to the lien in favor of the Trustees for assessment for Common Expenses and assessments, such assessments shall also be the personal obligation of the Owner of the Unit at the time the assessment fell due. G. The Trustees shall promptly provide any Unit Owner, or any Unit Buyer who has a duly executed purchase and sale agreement for the acquisition of a Unit, or any mortgagee, or the attorney

16 of any such party, with a written statement of all unpaid Common Expenses due with respect to such Unit, signed and acknowledged in proper form for recording, upon the written request of such Unit Owner or buyer or mortgagee or attorney. Notwithstanding anything to the contrary in this Declaration of Trust, including these By-Laws, such statements may be executed by one (1) Trustee during the term of the Initial Board, and thereafter by any two (2) Trustees and/or the management company, if said authority is delegated. Recording of such statement in the Essex South District Registry of Deeds shall operate to discharge the Unit from any lien for any other sums unpaid not enumerated as of the date of such statement to the extent provided by said Chapter 183A. H. The Trustees shall expend common funds only for Common Expenses and lawful purposes permitted hereby and by the provisions of said Chapter 183A. I. Notwithstanding anything to the contrary herein, any first mortgagee who obtains title to a Condominium Unit, pursuant to the remedies provided in its mortgage, or foreclosure of its mortgage, will not be liable for such Unit s unpaid dues, common charges, assessments (including interest and costs of collection and legal fees relating to the collection thereof) which accrue prior to the acquisition of title to such Unit by the mortgagee except as otherwise set forth in Section 6 of said Chapter 183A. The lien for Common Expense Assessments shall not be affected by any sale or transfer of a Unit, except that a sale or transfer pursuant to a foreclosure of a first mortgagee shall extinguish a subordinate lien for assessments which became payable prior to such sale or transfer, except as otherwise set forth in Section 6 of said Chapter 183A. Any such delinquent assessments which were extinguished pursuant to the immediately preceding sentence may be reallocated and assessed to all Units as a Common Expense. Any such sale or transfer pursuant to a foreclosure shall not relieve the purchaser or transferee of a Unit for liability for, nor the Unit from the lien of, any assessments made thereafter. J. The Trustees, for so long as the Condominium is subject to real estate taxes as a whole, shall maintain a fund sufficient in their judgment to provide a reserve to pay such real estate taxes when such are due and payable. Such reserve shall be maintained in a separate and segregated account to be known as the Tax Escrow Account and shall be utilized solely for the payment of said taxes. (i) Said Account shall be funded by the payment, at the time of sale of each Unit during such period as the Condominium is taxed as a whole, of an amount equal to then known tax bill divided by the number of months expired in the then taxing period plus one and multiplied by such Unit s Beneficial Interest. Thereafter, the Unit Owner shall make monthly payments on the first of each month equal to the Units proportionate share of said tax bill one month prior to its due date. The Trustees may make additional assessments or refund payments at such time as the actual bill to be paid is determined. Payments for unsold Units shall be made by the Declarant one month prior to the date such tax payments are due. To the extent that any Unit Owner is required to make monthly payments on account of real estate taxes to a bank or institutional lender holding a first mortgage on such Unit, such Unit Owner shall be excused from making payments to the said Account; provided, however, that the Unit Owners thereof shall use his best efforts and cooperate with the Trustees in

17 obtaining the consent of such mortgagee to payments to this Account in lieu of payments to such mortgagee. a. At such time as the taxing authority assesses the Units and their respective Undivided Interests in the Common Elements separately, the funds held in said Account shall be refunded to the Unit Owners in proportion to their then held payments thereto and the Account closed. b. Any late charge or penalty assessed by the taxing authority shall be paid, proportionately, by the Unit Owner, or Owners, so causing such. (ii) Notwithstanding the above, the Board of Trustees shall have the right to bill unit owners for the amount of proportionate funds due and owing by each unit owner pursuant to their beneficial interest for real estate taxes assessed prior to the date of the recording of this Amendment, with said amounts being due and owing within thirty (30) days or such other time as the Board of Trustees deems reasonable. 3. Insurance. A. The Trustees shall be required to obtain and maintain, to the extent obtainable, the following insurance (and to pay premiums thereon as a Common Expense): (1) such insurance shall cover all perils which are covered by the so-called standard all-risk endorsement, with Agreed Value Replacement Cost, insuring all portions of the buildings, including the Common Areas and Facilities of the Condominium, and all of the Units but not including carpeting, drapes, furniture, furnishings or other personal property supplied to or installed by Unit Owners, covering the interest of the Condominium, the Trustees and all Unit Owners and their mortgagees, as their interests may appear, in an amount equal to one hundred percent (100%) of the estimated replacement costs of the buildings, Common Areas and Facilities, and Units, without deduction for depreciation, with loss payable to the Trustees, as Insurance Trustees for each Unit Owner and the holder of each Unit s mortgage. If appropriate, Inflation Guard and Construction Code coverage should be written. The named insured shall be the Trustees of The Village at Salisbury Square Condominium Trust, for the use and benefit of the individual Unit Owners and Unit mortgagees ; (2) worker s compensation insurance; (3) Commercial General Liability insurance covering all Common Areas and Facilities, and any other areas under the supervision of the Trustees in such amounts and with such coverage as the Trustees shall from time to time determine, with a combined single limit for both Bodily I, Personal Injury and Property Damage, of not less than One Million Dollars ($1,000,000.00), but at least covering each member of the Trustees, the managing agent or the manager, if any, and each Unit Owner and with cross liability endorsement to cover liabilities of the Condominium to a Unit Owner, and a severability of interest provision precluding the insurer s denial of a Unit Owner s claim because of negligent acts by this Trust or other Unit Owners; (4) Fidelity Insurance in blanket form for all officers, directors, Trustees, employees and volunteers of the Trust whether or not they receive compensation for their services. Independent Property Managers shall be added to the Association s fidelity bond as designated agents and the Association shall thereby be covered for the Manager s activities. The total amount of fidelity bond coverage shall not be less than three (3)

18 months aggregate assessments plus reserve funds; and (5) such other insurance as the Trustees may determine. All such policies shall provide that adjustment of loss shall be made by the Trustees and that the net proceeds thereof shall be payable to the Trustees as Insurance Trustee for each Unit Owner and the holder of each Unit s mortgage. Each Unit Owner, accepting delivery of his Unit deed, appoints the Trustees as Insurance Trustees (or any Insurance Trustee or Substitute Insurance Trustee designated by the Trustees) as attorney-in-fact for the purpose of purchasing and maintaining such insurance, including: the collection and appropriate disposition of the proceeds thereof; the negotiation of losses and execution of releases of liability; the execution of all documents; and the performance of all other acts necessary to accomplish such purpose. The Trustees shall periodically reevaluate the amount of liability insurance to be carried by this Section to the end that the limits of such insurance shall not be less than the amounts specified in this Section, or, not less than limits of such liability insurance as are carried by other Condominium Unit Owners Associations in comparable Condominiums in Salisbury, Massachusetts, whichever is higher. B. All such policies of physical damage insurance shall, insofar as practicable, contain waivers of subrogation as to any claim against the Trustees, their agents and employees, Unit Owners, their respective employees, agents and guests, and of any defense based on invalidity arising from the acts of the insured and shall provide that the insurance will not be prejudiced by any acts or omissions of individual Unit Owners that are not under the control of the Owners Association, and shall provide that such policies may not be canceled or substantially modified without at least ten (10) days prior written notice to all of the insureds, including all Unit Owners and mortgagees of Units, and recovery thereafter shall not be affected on account of the availability of proceeds under any policies obtained by individual Unit Owners covering their own Units and shall include a Special Condominium Endorsement (so-called) or its equivalent. Agreed Amount, Inflation Guard and Construction Code Endorsements shall be required if available. A steam boiler and machinery coverage endorsement shall also be required, which provides that the insurer s minimum liability per accident at least equals the lesser of $2,000, or the insurance value of the buildings housing the boiler or machinery. A certificate of insurance, showing the amount of insurance, shall be issued to the Owners of each Unit and the original or a certificate thereof, shall, upon request, be delivered to the mortgagee of each Unit. The Trustees should periodically obtain an independent appraisal or insurance company appraisal of the full replacement value of all portions of the buildings, including all of the Units and all of the Common Areas and Facilities, and additions, alterations and improvements, without deduction for depreciation, for the purpose of determining the property amount of property insurance to be effected pursuant to this Section, and the amount of such insurance shall in no event be less than the full replacement value so as determined. C. Subject to the provisions of these By-Laws, insurance proceeds received by the Trustees shall be held in trust in an identified and segregated fund for the benefit of the Unit Owners and all mortgages of all Units. If the cost of restoring the Common Areas and Facilities, or any Unit is estimated by the Trustees to exceed the sum of One Thousand Dollars ($1,000.00), then the Trustees shall give written notice of such loss to all eligible mortgage holders and all eligible insurers and guarantors, as herein defined

19 D. The cost of all such insurance obtained and maintained by the Trustees pursuant to the provisions of this Section shall be a Common Expense of the Condominium. E(1). Any such insurance obtained and maintained by the Trustees pursuant to the provisions of this Section may have a deductible amount to be determined from time to time by the Trustees, who shall simultaneously specify, in writing with notice to all Unit Owners, how and by whom the amount of the deductible shall be paid in the event of a loss. E(2). Notwithstanding any provision in the Master Deed, Declaration of Trust and/or By-Laws, the Trustees shall have the right to assess the deductible to the Unit Owners as the Trustees may, in their sole discretion, determine including, but not limited to, assessing the deductible to the Unit Owners who sustain property damage to their Unit. In the event of property damage to a Unit or Units, the Trust shall not be responsible for the payment of the deductible but rather said Unit Owner or Unit Owners shall be responsible for the same. If a Unit Owner sustains property damage in amounts less than the Condominium Association s deductible, the Unit Owner shall be solely responsible for the cost to repair the damage, and the Unit Owner should notify his or her insurance agent. The Trust will not be responsible for property damage to a Unit in an amount less than the deductible, and no Unit Owner shall file a claim with the Master Insurance agent or carrier. F. All insurance obtained and maintained by the Trustees shall conform to applicable requirements of the Federal Home Loan Mortgage Corporation ( FHLMC ) and the Federal National Mortgage Association ( FNMA ) so long as FHLMC or FNMA hold one or more mortgages on Units in the Condominium or any interest therein. G. Each Unit Owner shall carry insurance at his own expense for his own benefit insuring, inter alia, his carpeting, drapes, fixtures, furniture, furnishings and other personal property, and personal liability, loss assessment coverage, along with an amount sufficient to reduce the deductible for the Master Policy of the Association established by the Board of Trustees, provided that all such policies shall contain waivers of subrogation, and further provided, that the liability of the carriers issuing insurance obtained by the Trustees shall not be affected or diminished by reason of any such additional insurance carried by a Unit Owner. Each Unit Owner shall promptly notify the Trustees of all improvements made by him to his Unit, the insurance replacement cost of which exceeds one thousand dollars ($1,000.00), and such Unit Owner shall pay to the Trustees as an addition to his share of the Common Expenses of the Condominium otherwise payable by such Owner any increase in insurance premium incurred by this Trust which results from such improvement. H. Nothing shall be done or kept in any Unit or in the Common Areas and Facilities which will increase the rate of insurance on the buildings or the contents thereof without the prior written consent of the Trustees, unless the Unit Owner responsible for such increase shall agree to pay the amount of such increase. 4. Rebuilding and Restoration. A. In the event of damage to or destruction of the Common Areas and Facilities as a result of

20 fire or other casualty (unless Subsection F of this Section is applicable), or, in the event of damage to or destruction of any Unit as a result of fire or other casualty, whether or not the Common Areas and Facilities have been damaged or destroyed (unless Subsection F of this Section is applicable), the Trustees shall promptly adjust the loss, arrange for the prompt repair or restoration of the same, and disburse the proceeds of all insurance policies in payment of all costs and expenses actually incurred in connection with such repair or restoration in appropriate progress payments and with appropriate retainage. All insurance proceeds paid to the Trustees as Insurance Trustees, on account of any casualty shall be dedicated first to the repair or restoration of the loss, and any application of said proceeds by the Trustees on account thereof shall be prior to the application of such proceeds for any other purposes. B. In the event the insurance proceeds are not sufficient to cover the cost of repairs to the Common Areas and Facilities and the Units, the proceeds will be first allocated to the cost of repairs to the Common Areas and Facilities and the balance, if any, to the cost of repairs to the Units in proportion to the cost of all repairs to the respective Units as determined by the insurer or by independent appraisal. To the extent the proceeds allocated as aforesaid are insufficient to cover the cost of repairs to the Common Areas and Facilities the balance of the cost of such repairs will be assessed against all Unit Owners as a Common Expense. Notwithstanding this provision, the Board of Trustees reserves the right to assess all costs associated with all insufficient proceeds, whether to Common Areas or to Units, to the Unit Owners of the affected Unit and not as a Common Expense. Notwithstanding this provision, the Board of Trustees reserves the right to assess the deductible to the Unit Owner pursuant to these By-Laws. C. Whenever the estimated cost of repair or restoration exceeds, as to any one casualty or occurrence, on the basis of an independent appraisal, the sum of Twenty-Five Thousand Dollars ($25,000.00), then the Trustees shall retain a registered architect or registered engineer, who shall not be directly or indirectly, a Unit Owner or an employee or agent of any Unit Owner, or a Trustee or an employee or agent of any of the Trustees, or the manager, if any, or any employee or agent of such manager, to supervise the work of repair or restoration and no sums shall be paid by the Trustees on account of such repair or restoration except upon certification to them by such architect or engineer that the work for which payment is being made has been completed in a good and workmanlike manner in accordance with approved plans and specifications and that the estimated total cost of completion of said repair or restoration, less amounts theretofore advanced, does not exceed the undisbursed proceeds of insurance as augmented by funds obtained by any assessment or assessments levied or chargeable to the Unit Owners as a Common Expense. D. The Trustees may perform emergency work essential to the preservation and safety of the Condominium, including all parts of the buildings and the Common Areas and Facilities and the Units, or the safety of persons, or required to avoid the suspension of any essential service to the Condominium, including all parts of the buildings and the Common Areas and Facilities and the Units, without having first engaged an architect or engineer, adjusted the loss or obtained proceeds of insurance. E. Subject always to the prior rights of the Unit mortgagees, if there shall have been a repair or